Bombay High Court judgment of 7 Oct 2026

Neeta Sawant WP 10241 of 2026 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10241 OF 2026 ALJ Residency Co-operative Housing Society Limited ...Petitioner : Versus :

1. Gehlot Development Services Pvt.

Ltd.

2. The Deputy Registrar, Co-operative

Societies H/West Ward, Mumbai

3. State of Maharashtra, through the

Secretary, Co-operation, Marketing

and Textiles Department

...Respondents

Mr. Mayur Khandeparkar with Mr. Shanay Shah, Mr. Aman Saraf, Mr.

Deepak Singh and Ms. Krina Kothari i/b. SL Partners, for the Petitioner.

Mr. Ankit Lohia with Mr. Akash Loya, Ms. Sonal Awasthi, Mr. Ronish Mehta, Mr. Manee Vishwakarma and Mr. Jerome Stephen i/b. Vinod Mistry & Co., for Respondent Nos.1 and 2.

Ms. Savina R. Crasto, AGP for State.

CORAM: SANDEEP V. MARNE, J.

JUDGMENT RESD ON: 23 SEPTEMBER 2026

JUDGMENT PRON. ON: 07 OCTOBER 2026

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07 OCTOBER 2026

Neeta Sawant WP 10241 of 2026 JUDGMENT:

1) Petitioner is a co-operative housing society and has filed the present Petition challenging order dated 7 May 2026 passed by the Deputy Registrar, Cooperative Societies, H-Ward, Mumbai Di vision, allowing the application preferred by Respondent No.1 un der Section 22(2) of the Maharashtra Co-operative Societies Act, 1960 (MCS Act) and thereby granting membership of the society to it in respect of the basement (Data Processing Unit) in the building.

2) Briefly stated, facts of the case are that the land beari ng Plot No.49-C, Pali Mala Road, Pali Naka, Bandra (West) , Mumbai was taken up for development by the developer - M/s. Bhati Homes Pvt. Ltd.

The Municipal Corporation for Greater Mumbai (MCGM) issued Intimation of Disapproval (IOD) on 4 August 1994 and Commencement Certificate (CC) was granted upto plinth level for Phase-I. On 16 Oct ober 1998, the Municipal Corporation sanctioned the building plans by issuing the commencement certificate. In the sanctioned plan, there was a basement below the ground level. In that basement, are a admeasuring 59.02 sq.m. was sanctioned as storage space and appare ntly the rest of the area was sanctioned for parking of vehicles. The pla ns were sanctioned for construction of the building only upto 5 th floor. However, the developer apparently committed several irregularities in construction of the building and constructed the same upt o 7 th floor.

Respondent No.1 claims to have purchased premises admeasuring 250.83 sq.m. equivalent to 2700 sq.ft. in the basement of t he building vide Agreement for Sale dated 2 August 2004 executed with M/s. Bhati Homes PAGE NO. 2 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 Pvt. Ltd. At that time, the Agreement for Sale was unregistered. It appears that the developer failed to complete constructi on of the building (which he constructed upto 7th floors), which does not have Occupation Certificate (OC). Construction of the basement was left incomplete by the developer, which does not have any r amp or staircase for access. In the meantime, flats on the 6th and 7th floors were sold by the developer. The flat purchasers in respect of the premises from ground to 7th floor formed and registered Petitioner-society.

3) It appears that for regularization of the building, additi onal BUA was required and therefore it was decided to purchase external TDR.

Since Respondent No. 1 was interested in getting regula rized the basement premises, it claims to have purchased TDR requ ired for regularisation of basement, 6 th and 7 th floor of the building and plans were submitted to MCGM for regularisation. The plans were processed internally by the MCGM. However, the same were not fin ally sanctioned and the regularisation proposal remained unfructified.

4) In the meantime, Respondent No.1 paid stamp duty on th e Agreement for Sale dated 2 August 2004 and registered a Deed of Declaration in respect of the said Agreement for sale. On 7 February 2009, Respondent No.1 applied to the society in respect of the basement premises allegedly purchased by him from the developer. Since the application was not decided by the society, Respondent No.1 filed Application No.4/2009 under Section 22(2) of the MCS Ac t before the Deputy Registrar seeking deemed membership. The society opposed the application by filing reply. By order dated 21 August 200 9, the Deputy PAGE NO. 3 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 Registrar allowed the application of Respondent No.1 and granted to it deemed membership with the Petitioner-society. The Soci ety complied with the order dated 21 August 2009 and issued him Sh are Certificate No.21. After delay of 9 long years, the Petitioner-Societ y filed Revision Application No. 93/2018 before the Divisional Joint Registrar challenging the Deputy Registrar’s order dated 21 August 2009. By order dated 20 July 2022, the Divisional Joint Registrar dismissed the revision.

Petitioner-society filed Writ Petition No. 1057 of 2023 cha llenging the order of the Divisional Joint Registrar. By order dated 14 N ovember 2025, this Court set aside the orders dated 21 August 20 09 passed by the Deputy Registrar and 20 July 2022 passed by the Division al Joint Registrar and remanded the proceedings to the Deputy Reg istrar for re- adjudication of the application holding that the authorit ies were required to examine whether the premises claimed by Re spondent No.1 have the character of ‘flat’ as defined under the statut e. In the remanded proceedings, Petitioner-society relied upon the sanctioned plan in support of its contention that the entire basement is pa rking/common area with no sanctioned access. By order dated 7 May 20 26, the Deputy Registrar has allowed the application of Respondent No.1, inter alia holding that as per the plan dated 25 April 2008, the premises claimed by Respondent No.1 are sanctioned as ‘Data Processing Unit’ (DPU) which are being used by Respondent No.1 as a godown. The Deputy Registrar has accordingly directed the society to complete the proceedings for grant of membership to Respondent No.1 in respect of the ba sement (DPU).

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Neeta Sawant WP 10241 of 2026 5) Petitioner-society has filed the present petition challe nging the Deputy Registrar’s order dated 7 May 2026, instead of filing revision before the Divisional Joint Registrar.

6) Mr. Khandeparkar, the learned counsel appearing for the Petitioner-society submits that Petitioner may not be re legated to alternate remedy of filing revision on account of violation of remi t of remand delineated by this Court in the order dated 14 No vember 2025.

That invocation of writ jurisdiction is justified on account of Authority traveling beyond the scope of remand and committing a juris dictional error. In support, he relies on judgment of this Court in S. N. Choudhary vs. Dongre Park Coop. Society Ltd. and Ors. 1 That in any case, the Petition involves a pure question of law and therefore exerc ise of alternate remedy is not mandatory. In support, he relies on judgment of the Apex Court in Godrej Sara Lee Ltd. vs. Excise and Taxation Officer- cum-Assessing Authority and Ors. 2 Since there are already precedents that govern the field, it is not necessary to file revision as held by this Court in Shireen Sami Gadiali and Anr. vs. Spenta CHSL and Ors. 3 7) Mr. Khandeparkar further submits that the impugned order passed by the Deputy Registrar is grossly illegal as th e same exceeds the scope of enquiry delineated by this Court by its order dated 14 November 2025. That this Court had directed the Deputy Registrar to examine the sanctioned plan and the layout to arrive at the conclusi on as to whether the subject premises is a ‘flat’ or not. That the order da ted 14 November 1 2025 SCC OnLine Bom 4386 2 2023 SCC OnLine SC 95 3 2011 (3) MhLJ 486 PAGE NO. 5 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 2025 has attained finality. However, the Deputy Regist rar has exceeded the scope of remanded enquiry by placing reliance on NOC issued by the Chief Fire Officer for the purpose of reaching a finding that the subject premises is a DPU. That the Deputy Registrar has totall y ignored the officially sanctioned plans. That subject premises is a mere basement and common area for parking and storage as per the sancti oned plan dated 16 October 1990. That the storage indicated in the sanctioned plan is a common amenity not meant for sale. That FSI is us ed for the said storage area. That the architect of Respondent No.1 had su bmitted plans for approval to MCGM in 2008 for mere change of user of the subject premises from basement to IT unit and admittedly such approval has not been granted.

8) Mr. Khandeparkar submits that this Court has repeatedly held that sanctioned plan must alone be considered to evaluate the status of particular premises. He relies on judgment of this Court in Dr.

Vasant P. Jain vs. Secretary/Chairman Suvarna – Sapna CHS Ltd. and Ors. 4 , Amanul Ekramul Ansari vs. State of Maharashtra and O rs 5 and Ashwini Heights CHSL vs. Jyoti Nitin Lunia and Ors. 6 That in Nahalchand Laloochand Pvt. Ltd. vs. Panchali Cooperative H ousing Society Ltd. 7 , this Court has expressly recognized that basement is always a common amenity. That therefore, common storage sp ace located in basement which is free of FSI and which is incapable of being regularized, cannot be treated as a ‘flat’ for grant of mem bership in the 4 2025:BHC-OS:4553 5 Writ Petition No.1293 of 2026 decided on 2 February 2026 6 2026:BHC-AS:34441 7 (2010) 9 SCC 536 PAGE NO. 6 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 society. He relies on Model Bye-laws in support of his cont ention that basement is a common area of the society. Relying on de finition of the term ‘flat’ under Section 154B-1(13) of the MCS Act, he s ubmits that storage space located in basement cannot be treated as a ‘flat’.

9) Mr. Khandeparkar submits that the premises claimed by Respondent No.1 does not even have any access. That onl y access point is a floor hatch/lid located on the ground floor through which one can enter the basement. That the impugned order proceeds on a n erroneous finding that the premises claimed by Respondent No.1 is a DPU. That mere proposed plan of 2008 is taken into consideration by the Deputy Registrar which has never been sanctioned. That the a pproval/NOC issued by the Chief Fire Officer does not elevate the proposed plan to the status of sanctioned plan.

10) Mr. Khandeparkar further submits that the contention of Respondent No.1 of estoppel by conduct is baseless and con trary to law.

That Petitioner’s conduct in participating in regularisat ion process cannot act as an estoppel as to law. That subject premises are not regularisable in law and therefore the conduct of the Peti tioner becomes irrelevant. He relies on Regulation No.35(2) of DCR 1991 in support of his contention that the area of basement is excluded from FSI computation. That even the ‘summary’ of IOD plan dated 16 October 1998 indicates that the storage space in the basement area is FSI-free.

That there is no parity between Respondent No.1 and occup ants of flats on 6 th and 7 th floor who have paid valuable consideration. That Respondent No.1 has never purchased the basement premises but claims PAGE NO. 7 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 to have received the premises from the developer in lieu of monetary compensation. That Respondent No.1 has suppressed the le tter dated 9 September 2002 submitted by it to MCGM admitting that basement premises are received by him by way of a barter. That provisions of Section 154B-5 of MCS Act do not permit grant of membershi p in excess of sanctioned flats in the building. That therefore no am ount of conduct of Petitioner-society can stop operation of Section 154B-5 of the MCS Act. Mr. Khandeparkar further submits that it has come to lig ht that the TDR allegedly purchased by Respondent No.1 has been sold in open market to third parties and has never been allotted in any part of the building. That Respondent No.1 has suppressed the fact um of sale of TDR. On above broad submissions, Mr. Khandeparkar prays for setti ng aside the impugned order passed by the Deputy Registrar.

11) Mr. Lohia, the learned counsel appearing for Respondent No.1 opposes the petition. He raises a preliminary object ion as to maintainability of the Petition, submitting that Petiti oner-society has not exhausted the remedy of revision as was done previously in respect of earlier order dated 21 August 2009 passed by the Depu ty Registrar. He relies on judgment of this Court in Vinay M. Ahuja and Anr. vs.

Divisional Joint Registrar of Cooperative Societies a nd Ors. 8 in support of plea of non-maintainability of the Petition.

12) Mr. Lohia further submits that the Petitioner has suppressed material facts. That Petitioner has falsely pleaded that ‘basement regularization’ never fructified by suppressing the fact that 8 2025 SCC OnLine Bom 3303 PAGE NO. 8 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 there was a common regularization application for regularization of basement, 6 th and 7 th floors. That said documents were conveniently relied upon in LC Suit No. 566 of 2022 for restraining the MCGM from demolishing the flat of the deponent of the Petition on the 6th floor. That before the City Civil Court, the deponent of the Petition ra ised a plea that his flat cannot be demolished on account of processing of regularization proposal by the MCGM. However, in the pres ent Petition, the said deponent has taken a volte face and has misrepresented to this Court that the regularization proposal has never fructified. H e takes me through several documents relating to regularization proposa l to show active participation of the society therein. He submits that the society has also suppressed the fact that it filed Writ Petition No. 406 of 2018 for deemed conveyance by relying on documents pertaining to common regularization activity for basement as well as 6 th and 7 th floors. That relying on those documents, this Court directed grant of dee med conveyance in favour of the Petitioner. That since Pet itioner-society has not approached this court with clean hands, the petiti on deserves to be dismissed. In support, he relies on judgment of this Court in K. Jayaram vs. Banglore Development Authority 9 , Ramjas Foundation vs. Union of India10, and Elder Project Limited vs. Elder Neutraciticals Pvt. Ltd.11 13) Mr. Lohia further submits that the Petitioner-society cannot approbate and reprobate in respect of grant of membership. The stand now taken by the society that the premises occupied by Respondent No.1 are not sanctioned as per the 1998 plan is inconsist ent with the stand 9 (2022) 12 SCC 815 10 (2010) 14 SCC 38 11 2026 SCC OnLine Bom 1855 PAGE NO. 9 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 taken by it contemporaneously in its advocate’s letter d ated 5 October 2015. That in any case, even in the 1998 plan, area admeasuring 59.02 sq.m. is sanctioned, which is confirmed in the report dated 9 October 2015 of Kapil Bakshi. That Petitioner’s entitlement to membership qua at least the sanctioned area admeasuring 59.02 sq.m. cann ot be disputed.

That even flats on the 6 th and 7 th floors are beyond the sanctioned plan.

However, society granted membership to flat purchasers on t he 6 th and 7th floor of the building including to the deponent of the P etition. That society cannot discriminate amongst the occupiers who are similarly placed. That Petitioner is therefore estopped from denyi ng membership to the Petitioner. In support, he relies on judgment of the Apex Court in State of Punjab and Ors. vs. Dhanjit Singh Sandhu 12 .

14) Mr. Lohia further submits that if membership can be granted to occupants of 6th and 7 th floor on contemplated regularization, the same benefit needs to be extended to Respondent No.1. He relies on judgment in Kamla Spaces Premises Co-op Society Ltd. vs. Divisional Joint Registrar, Co-op. Societies, Mumbai Division 13 and Uday Dalal and Ors. vs. Divisional Joint Registrar, Co-op. Socie ties and Ors. 14 In support of plea of similar treatment, he relies on judgme nt in Om Prakash Banerjee vs. State of West Bengal and Ors. 15 , Rajendra Yadav vs. State of Madhya Pradesh and Ors. 16 and Ravindra Kini vs.

Municipal Commissioner and Ors. 17

12 (2014) 15 SCC 144

13 Writ Petition (L) No.2579 of 2024 decided on 27 March 2024 14 2025 SCC OnLine Bom 5202 15 2023 SCC OnLine SC 771 16 (2013) 3 SCC 73 17 2026:BHC-AS:28665-DB PAGE NO. 10 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 15) Mr. Lohia further submits that the basement cannot be used in the facts and circumstances of the present case as a parking space as the ramp required for vehicular access to the basement is not constructed. That therefore basement premises are regularisable as DPU.

That the factum of sanction of 59.02 sq.m. of built-up area (BUA) as storage belies the contention that the entire basement i s for parking purposes. That basement premises otherwise falls into definition of the term ‘flat’ as per Section 154B-1(13) of the MCS Act. He relies on judgment of this Court in Mistry Park CHS Ltd. vs. Dr. Bharat Prem Shivdasani and Ors. 18 and Simla House CHSL vs. Yayati Ramesh Vairale and Ors. 19 and Ashwini Heights (supra).

16) Mr. Lohia further submits that the manner in which the premises are purchased by Respondent No.1 is of little rel evance.

Whether Respondent No.1 is paid monetary consideration or not or has received basement premises in lieu of recoupment of expens es is not society’s concern. That Petitioner holds a registered in strument of ownership of the basement premises and is entitled to m embership. In support, he relies on judgment in Apna Sahakari Bank Ltd. and Anr. vs.

Matulya Centre Premises Co-op. Soc. Ltd. and Ors. 20 and Ashwini Kumar Joshi and Anr. vs. Dy. Registrar of Co-op. Societ ies and Ors. 21 On above broad submissions, Mr. Lohia would pray for dismis sal of the Petition.

18 2023 SCC OnLine Bom 3002

19 2026 SCC OnLine Bom 2627

20 2019 SCC OnLine Bom 650

21 2026 SCC OnLine Bom 10535

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Neeta Sawant WP 10241 of 2026 17) Rival contentions urged on behalf of the parties now fall for my consideration.

18) It must be observed at the very outset that the Petiti oner has filed the present Petition without exhausting the statutory remedy of filing revision under Section 154 of the MCS Act. In the present Petition, Petitioner has directly challenged order passed by the Deputy Registrar under Section 22(2) of the MCS Act, which is clearly re visable before the Divisional Joint Registrar under Section 154 of the Act. It must be observed here that this is the second round before the Co-operative Registrar. In the earlier round of litigation, applicati on preferred by Respondent No.1 was allowed by order dated 21 August 20 09. At that time, Petitioner had filed revision before the Divisional Joint Registrar, albeit belatedly on 8 August 2018. It is only after the Revis ion was dismissed that Petitioner-society had approached this Court by filing Writ Petition No. 1057 of 2023. Having exercised the alternate remedy of revision in the previous round, there is no valid reason why the Petitioner can bypass the statutory remedy this time a nd approach this Court directly by filing the present Petition. Ordinarily, t his Court would not have entertained the present Petition and would hav e relegated the Petitioner to the alternate remedy of revision. However, at the insistence of the Petitioner, the present petition was repeatedly t aken up for hearing by this Court and attempts have been made to settle the disputes between the parties. The settlement has, however, not fructified.

19) Petitioner has particularly relied upon order of remand made by this Court on 14 November 2025 and has justified direct filing of PAGE NO. 12 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 the present Petition contending that the remit of remand is violated by the Deputy Registrar. Reliance in this regard is placed on judgment of this Court in S.N. Choudhary (supra), which, however, does not lay down the law that when remit of remand is violated, alternate relief can be bypassed. The judgment is an authority on the principle that quasi- judicial authority cannot travel beyond the limit set b y this Court for adjudication in remanded proceedings.

20) Reliance is also placed on judgment of this Court in Nook CHSL vs. Pyramid Developers 22 in which an order of remand was set aside remanding the matter to the Competent Authority on ly for the purpose of ascertainment of land proportionate to the BUA cons umed in construction of the building. However, in Nook CHSL (supra), the issue of alternate remedy was not involved since there is no alternate remedy available against the order passed by the Competent Auth ority.

Petitioner has relied upon judgment of Full Bench of this Court in Shireen Sami Gadiali (supra), which again does not lay down an abstract principle of law that remedy of revision under Section 154 of the MCS Act cannot be treated as an alternate remedy in every c ase. Reliance on judgment of the Apex Court in Godrej Sara Lee Ltd. (supra) is also inapposite as the judgment restates the proposition in Whirlpool Corporation vs. Registarar of Trademarks, Mumbai 23 , which makes exception to the rule of alternate remedy where petition er seeks enforcement of fundamental rights where there is violation of principles of natural justice, where order is without jurisdiction, or where vires of 22 2026 SCC OnLine Bom 2774 23 (1998) 8 SCC 1 PAGE NO. 13 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 the Act is challenged. Also in Godrej Sara Lee Ltd. , jurisdictional issue was raised by the appellant in the writ petition quest ioning the very competence of the revisional authority to exercise suo moto power.

Therefore, the judgment of the Apex Court in Godrej Sara Lee Ltd. can also not be relied upon for bypassing the statutory remed y of revision against the order passed by the Deputy Registrar.

21) I am therefore not convinced that in the facts and circumstances of the present case, statutory remedy of revi sion could have been bypassed. A suggestion was given to the Pe titioner-society during the course of hearing to avail the alternate remedy of filing a revision. However, Mr. Khandeparkar has insisted that si nce the Petition is heard on multiple occasions, it is better that this C ourt decides the same rather than relegating the Petitioner to alternat e remedy. Thus, it is on the insistence of the Petitioner that this Court h as entertained the present Petition and proceeds to decide the same on merits.

22) Before adverting to the core issue involved in the presen t Petition about entitlement of Respondent No.1 to membersh ip of Petitioner society on the strength of rights claimed by it in the basement premises, it must be noted at once that there is a cle ar shift in the stand of the Petitioner-society qua the issue of grant of membership to Respondent No.1. Respondent No.1 had earlier succeeded before the Deputy Registrar, who had directed grant of membership to Respondent No.1 vide order dated 21 August 2009. Petitioner-societ y complied with the said order and issued Share Certificate No.21 in favour of Respondent No.1 on 14 October 2009. For next 9 years, the Petitioner- society did not PAGE NO. 14 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 have qualms about grant of membership to Respondent No.1. It decided to challenge grant of membership to Respondent No.1 after 9 long years and filed Revision Application No. 93 of 2018 before the Divisi onal Joint Registrar on 8 January 2018. I do not propose to delve deeper into the reasons as to how the Revision was entertained by the Divi sional Joint Registrar after passage of 9 long years. The revision was however entertained and was dismissed on merits. The Petitione r accordingly filed Writ Petition 1057 of 2023, challenging the order of the Divisional Joint Registrar dated 20 July 2022 and secured an order of remand of proceedings to the Deputy Registrar. In the remanded proce edings, Respondent No.1 has again succeeded and the Deputy Registrar has directed grant of membership to Respondent No.1. This is how Respondent No.1 is still fighting a battle with the Petitioner-society even though he had secured membership way back on 21 August 2009.

Respondent No.1 remained member of the Petitioner-society from 21 August 2009 till the order of the Deputy Registrar was s et aside by this court on 14 November 2025. Be that as it may, this Court d irected remand of the proceedings before the Deputy Registrar by order dated 14 November 2025 and in the remanded proceedings, grant of membership to Respondent No. 1 is restored. Thus, except a very sh ort gap between 14 November 2025 (date of order of this Court) to 7 May 2 026 (date of passing of order by Dy. Registrar) Respondent No. 1 has been the member of the Petitioner society since 21 August 2009.

23) The Petitioner has questioned correctness of the Order passed by the Dy. Registrar directing grant of membership to Respondent No. 1 in respect of the basement premises (DPU). As observ ed above, the PAGE NO. 15 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 impugned order is passed by the Deputy Registrar in pu rsuance of order of remand made by this Court on 14 November 2025. It is Petitioner’s contention that the remit of remanded inquiry is violated by the Deputy Registrar while passing the impugned order. It would t herefore be necessary to take note of the order passed by this Court . In paragraph Nos. 6 to 10 of the order dated 14 November 2025, this Court observed as under:

6. The authorities under the Act were required to r ecord a clear finding on these aspects. They were duty bound to determine whethe r the premises described in the sale deed fall within the statutory definition of a flat in Section 2(a-1) of the Maharashtra Ownership Flats Act and Section 154B-1- (13) of the MCS Act, 1960. They were also required t o decide whether such premises form part of the common areas and facilities. This determination is not a formality. It flows from the statutory scheme. M OFA places clear duties on the promoter and protects the collective rights of purchasers in respect of spaces reserved for common use. If an area is shown in the sanctioned plan as a common amenity, it carries with it a legal consequence. Such space belongs to all members. It cannot be sold as an independent unit. It cannot be converted into a flat by a mere recital in a document.

7. The authority must, therefore, examine the sanctio ned plan, the layout, the disclosure made by the promoter and the statutory definition of common areas.

Only then can it reach a conclusion. It is also needed to decide whether membership can be granted in respect of a space that may not have the character of a flat as defined by the statute. This exe rcise calls for a careful appraisal of documents and applicable legal provisions.

8. If the premises are not recognized as a flat under l aw, the further question arises whether the society can be compelled to confer membership in respect of such an area. These findings are essential for a lawful and reasoned decision.

Their absence renders the orders vulnerable.

9. In view of this lapse, the impugned orders cannot stand. The orders dated 20 July 2022 and 21 August 2009 are set aside.

10. The Deputy Registrar, Co-operative Societies, H/Wes t Ward, Mumbai shall reconsider the matter. He shall decide the questions f ramed above on the basis of the material placed before him. The exercise shall be completed within four months from the date of this order.

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Neeta Sawant WP 10241 of 2026 24) Thus, the Deputy Registrar was required to decide whet her premises in respect of which rights are claimed by Respon dent No.1 are covered by definition of the term ‘flat’ under Section 154B- 1(13) of the MCS Act or whether such premises merely form a part of comm on areas and facilities. In the impugned order, the Deputy Regi strar has taken note of the plan dated 25 April 2008 and has held tha t the premises are described as a DPU in the said plan. The relevant findings recorded by the Deputy Registrar in paras-2 to 8 of the order reads thus:

2. The premises in respect of which the Applicant is seeking membership form part of the common areas and amenities of the Society a nd its members. The common areas are meant for the collective benefit of all the members of the Society, and the said premises cannot be taken possession of, or transferred, as private property by any individual/member. Any alleged s ale/transfer transaction effected by the promoter cannot be binding on the Society or its members. The said premises allegedly purchased by the App licant must be covered by the definition of ‘flat’ under Section 2(a-1) of the MOFA and by the relevant provisions of the Maharashtra Co-operative Societies Act, 1960.

Unless the said requirement is fulfilled, no right of membership can arise under Section 22(2) of the Maharashtra Co-operative Societi es Act, 1960. The Applicant is at present entering the basement by opening a door on the ground and is using the same. The Applicant is claiming righ ts through the alleged sale agreement dated 02.08.2004 and the registered decl aration dated 21.11.2008. The Society has argued that common premises cannot be converted into an independent unit/flat merely by reaso n of the description of the premises in the alleged registered sale deed.

3. Under cover of the letter dated 09.08.2007, a revi sed plan was submitted to the Municipal Corporation on 13.08.2007. In the revised plan, the said premises were proposed as a ‘Data Processing Unit’, and the sa me had been included in the FSI. By the letter dated 24.10.2008, the Architec t submitted the revised plan to the Executive Engineer, Building Proposals Department, where the unit on the ground floor has been shown as ‘IT User’, and i t has been informed that the area of the Applicant’s premises on the ground flo or has been counted in the FSI and that the same can be accessed through an i ndependent staircase.

The Applicant has filed submissions to the effect that, as recorded in Paragraph No. 4 of the sale agreement dated 02.08.2004, the Appl icant has purchased a distinct, self-contained and independently identifiable en closed unit situated in the basement, and, in support thereof, the Applicant has submitted a copy of PAGE NO. 17 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 the letter dated 24.10.2008 submitted by the Architec ts, M/s. H. M. Jhaveri & Sons, to the office of the Executive Engineer, Building Permission (W.S.).

4. Section 2(a-1) of the MOFA Act, 1960 provides: “Fla t Means a separate and self contained set of premises used or intended to be used for residence or office, or showroom, or shop or godown or for carrying on any industry or business (and includes a garage) the premises forming p art of a building (and includes an apartment)”.

5. Further, Section 154B-1(13) of the Maharashtra Co- operative Societies Act, 1960 provides that “Flat” means a block, chamber. dwelling unit, tenement, office, showroom, shop, godown, premises, suite, gala, un it or by any other name, that is to say, a separate and self-contained group, of any immovable property, comprising one or more rooms or enclosed spaces, situated in a building or on a plot of land, on one or more floors or on any part thereof, which is used or intended to be used for any residential or commercial use such as residence, office, shop, showroom or godown, or for carrying on any trade, business, profession or calling, or for any other kin d of ancillary use incidental to the specified purposes;

6. In the present case, various plans have been submit ted to the Municipal Corporation. However, the Applicant has, in the pre sent case, submitted the plan dated 25.04.2008 filed with the Municipal Corpora tion, wherein it is seen that the said premises have been referred to as “Data Processing Unit”. Further, the advocates of the Applicant have, at the time of t he hearing, stated that the said premises are being used as a godown. Section 154B- 1(13) of the Maharashtra Co-operative Societies Act, 1960 provides that “Flat” means Unit or by any other name. Considering the said provision, it prima facie appears that the said premises fall within the definition of a flat.

7. The Society has raised a question mark over the validity of the registered sale agreement dated 02.08.2004 and the registered declaratio n dated 21.11.2008.

However, the question of determining the validity of t he agreement and of the declaration does not fall within the jurisdiction of this office. If the Respondent Society has any dispute in respect of the said agreemen t and declaration, it would be appropriate for the Society to seek redress i n that behalf before the concerned competent authority / court.

8. Further, no order cancelling the registered sale agr eement dated 02.08.2004 and the registered declaration dated 21.11.2008 submitt ed by the Applicant in the present case, or granting any stay or injunction in respect thereof, has been produced before this office by the Respondent Society or by anyone else.

25) This is how the Deputy Registrar has recorded a finding th at since premises are reflected as DPU in the plan and sinc e they are being PAGE NO. 18 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 used as a godown, the same fall within the definition of the term ‘flat’.

The remit of inquiry is thus not violated by the Deputy Registrar who has held, upon perusal of the records before him, that there is sanction to the basement premises. The order of the Deputy Registrar therefore needs to be tested on merits and not on the ground of violation of remit of remand.

26) Thus, the Deputy Registrar has taken into consideration the document dated 25April 2008 for holding the premises of Respondent No.1 as a ‘flat’. Mr. Khandeparkar has taken me through th e document dated 25 April 2008. The same is an approval issued b y the Chief Fire Officer of MCGM to the proposed amended plan in which the basement was proposed to be regularised as storage space and stairca se was proposed to be constructed for accessing the basement. The Chief Fire Officer expressed ‘no objection’ to the proposed amendments s ubject to various conditions. Thus, the document relied upon by th e Deputy Registrar dated 25 April 2008 is not a sanctioned plan , but it is merely one of the documents required for processing sanction of a p lan.

However, the said document indicates that the basemen t premises were capable of being regularized.

27) Various documents relating to regularization proposal are placed on record and the same indicate that Architect ha d submitted plans in the year 2008 for regularization of basement and 6th and 7th floors of the building. As observed above, even 6th and 7t h floors have been constructed by the developer in contravention of the s anctioned plan dated 16 October 1998. It appears that the Respond ent No. 1 had PAGE NO. 19 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 shown willingness to purchase the TDR required for regularisation of the basement, 6th and 7th floors of the building. Why Respon dent No. 1 showed willingness to purchase TDR required for regularis ation of 6 th and 7 th floors is incomprehensible. There appears to be some connect between the developer and the Respondent No. 1, who is also involved in real estate development activities. It might have been associated in construction of the building by the developer. This is c lear from the fact that the developer had agreed to sale the basement prem ises to Respondent No. 1 to satisfy the dues of Respondent No. 1 . What exactly were the dues is neither known at this stage nor is re levant for deciding the issue at hand. After noticing that TDR was required for regularization of basement, 6 th and 7 th floors, Respondent No. 1 showed willingness to purchase the same, possibly because it wanted to have the basement regularized. There appears to be some evidence of purchase of such TDR.

It is through this purchased TDR that plans were submitte d for regularization of basement and 6th and 7th floors of the building. It is an undisputed position that regularisation proposal was proces sed and the same was at an advanced level of being sanctioned. How ever, at that stage, the same was left midway. Why this has happened is not known at this stage. Suffice it to observe that the basement, 6t h and 7th floors of the building do not have approval from the planning aut hority. But the striking feature of the regularization process is the fact that all the three premises of basement, 6th floor and 7th floors stand on the same pedestal.

Therefore, all the three premises must meet the same fate.

28) Ordinarily, this Court would have set aside the order pass ed by the Deputy Registrar once it is found that there is n o sanction to the PAGE NO. 20 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 basement structure in the approved plan. However, by a pplying this parameter, even grant of membership to occupants of 6th an d 7th floor will have to be revoked since the flats occupied by them also do not have any sanction/permission and the same also do not fit int o definition of the term ‘flat’ as sanctioned by the planning authority . In fact, Respondent No. 1 appears to be better situated as compared to occupants of flats on the 6th and 7th floors. As against to tal absence of sanction for flats on 6th and 7th floors, there is at lea st some sanction in respect of part of the premises on the basement. In the ba sement, area admeasuring 59.02 sq.m. (635.37 sq.ft.) has been sanc tioned as ‘storage space’. Thus, at least qua area admeasuring 59.02 sq.m., there appears to be some sanction even in the original plan dated 16 Oct ober 1998. The entire basement is not for parking amenity as sought t o be suggested by the Petitioner-society.

29) For extension of different treatment, one may seek to draw a distinction between the occupants of 6th and 7th floor fla ts and Respondent No.1 by contending that constructed flats are capable of being regularised but basement, being a common amenity, ca n never be regularised. In this connection, Mr. Khandeparkar has rel ied upon judgment of Division Bench of this Court in Nahalchand Laloochand (supra) in support of his contention that basement has t o be always treated as a common amenity. Ordinarily, there can be no dispute about this proposition. However, in every case, the basement cannot be a common amenity, and it can always depend on facts and circumstances of each case. There are cases where Municipal Corporations / planning authorities sanction premises in the basement for various uses. In this PAGE NO. 21 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 regard, reference can be made to the judgment of this Cou rt in Ashwini Heights (supra) in which membership was sought qua a godown located in the basement of the building. Once this Court was satisfied that godown in the basement was sanctioned in the municipal plan, this Court upheld the right of occupant thereof for separate mem bership.

Therefore, it cannot be stated as a matter of universal p rinciple that in every case where a basement is constructed, the same wou ld always be a common amenity. This Court held in paras-24 and 25 of the judgment in Ashwini Heights as under:

24) To put any doubt to rest, Respondent Nos.1 and 2 have procured separate occupation certificate dated 10 March 2021 qua only th e godown. They have also secured a separate commencement certificate qua the godown on 6 July 2021. The said commencement certificate dated 6 July 2021 sanctions the godown as was done in the original sanctioned plan dat ed 25 June 1993. The godown is now assigned a number, which was lacking in t he original plan. The comparative difference in the description of the godown in the original and revised sanctioned plans is as under:- Description in the sanctioned plan dated 25 June 1993 Description in the Revised sanctioned plan dated 6 July 2021 GODOWN for NON COMBUSTIBLE MATERIAL 22’-8’ X 11’-0’’ 272.09 SQFT B/UP GODOWN NO. FOR NON COMBUSTIBLE MATERIAL 22’ - 8’’x 11’- O”=272.09 sq.ft. B/UP 25) Thus, in the revised sanctioned plan, the godown is assigned a separate number (Godown No. 1) since the Society was attempting to confuse the godown as a part of shop No.8. Thus, in the original plan itself godown was always a separate structure of shop No.8. To quell any doubts, the revised sanctioned plan now identifies godown as a separate structure by assigning it a separate number.

30) Therefore, the proposition that no premises located in the basement can ever be regularised for individual use, app ears to be something which cannot be accepted as a universal princ iple. In the PAGE NO. 22 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 facts and circumstances of a given case, even premise s located in the basement are capable of being regularised for a particular use. This is clear from the facts and circumstances of the present c ase, where regularisation proposal was processed and was at a very adva nced stage.

If premises located in the basement are incapable of being regularised for any purposes for individual use, the Municipal Corpora tion would have rejected the proposal at the threshold. In the presen t case, it appears that regularization was required because there was deficit BUA/FSI for basement and 6 th and 7 th floors. The society itself believed that the basement premises were capable of being regularize d and participated in the regularization process. It never trea ted that the basement was a common amenity for use by all the reside nts of the building. Petitioner-society cannot now be permitted to take a volte face and question possibility of regularisation of basement.

31) Now I proceed to consider the manner in which Petitione r- society conducted itself when proposal for regularisation of basement was submitted. The society did not object to the baseme nt being regularised for being used exclusively by Respondent No.1 nor it contended that the basement is a common amenity to be u sed by all members. During 2007-08, when the regularization was at a n advanced stage, the Petitioner-society actively participated in the said process and gave its consent for regularization of the basement premis es. In this regard following letter of the society is of relevance:

Dt: 31-5-2011

Sub.: Basement premises.

PAGE NO. 23 of 41

07 OCTOBER 2026

Neeta Sawant WP 10241 of 2026 Sir, Recently BMC has inspected the basement and found se vere mosquito breathing in your basement and instructed to clean up and illuminated Annexing herewith the Society’s NOC for obtaining electric meter / connection for your basement premises in Society building.

You are requested that on receipt of electric conne ction, provide one water pump during monsoon for dewatering accumulated water if any and keep the basement dry and also to illuminate the basement with s ufficient lightings during dark.

Secondly, we have also no objection of your construct ing steps at the entrance of your basement, so as to enable proper access to your basement.

You are requested to expedite the above in order to ke ep the area mosquito free.

Yours faithfully,

For ALJ Residency Co-Op. Hsg. Soc. Ltd.

32) In the letter dated 31 May 2011 issued to Responden t No.1, the society also issued NOC for obtaining electricity meter/connection for the basement premises. The society also issued NOC for construction of steps at the entrance of basement for accessing the same. The society also issued specific NOC for loading of TDR for regularisa tion of inter alia the basement vide letter dated 3 April 2008 which reads thus:

Date: 3/04/08

To,

The Executive Engineer,

Building Proposal (W.S),

Municipal Corporation of Greater Mumbai,

Bandra (West), Mumbai.

Sub: No objection for loading T.D.R on land bearing CTS No.873 to 885 Of Village Bandra at junction of Pali Mala Road and Dr Ambe dkar Road, Bandra (west), Mumbai only for the regularization of the exis ting 6 th and 7 th floors and Basement.

Ref: B.M.C. File no.CE/9855/ BS II/A.II

Sir,

PAGE NO. 24 of 41

07 OCTOBER 2026

Neeta Sawant WP 10241 of 2026 Further to our meeting held at the Ch. Eng. (Mr. Naik) office, and our promise given to him then, we permit M/S Bhati Homes Pvt. Ltd. to load the TDR for regularizing the existing 6 th and 7 th floors and basement which were constructed by him without obtaining proper sanctio n from BMC. Since the developer M/s Bhati home pvt ltd. has now su bmitted the proposal with the T.D.R. to regularize the existing 6th and 7th floors and basement, we hereby request you to process our file at the earliest.

We would like to also inform you to that the develop er has agreed to pay all the taxes, penalties. premiums, deficiencies or any other tax that maybe levied upon him for the regularization and getting OC for the current structure which consists of basement, ground and seven upper flooг.

We have no objection for solely and solely for the loa ding the T.D.R. on the above proposal and get the existing 6th and 7th floor and basement of our building regularized and the obtaining of OC of the building.

We are ready to co-operate with the Municipal Corpor ation of Greater Mumbai, developer and architect to get our building regularized.

Thanking you,

Yours faithfully.

(emphasis and underlining added)

33) Thus, by letter dated 3 April 2008, the Petitioner-society desired regularization of 6th and 7th floors, as well as of the basement ,all of which was constructed without obtaining proper sanction from MCGM. The NOC was granted for loading of TDR for regularization of the 6th and 7th floors and the basement of the building.

There is no dispute to the position that TDR has been pu rchased. It is claimed by Respondent No.1 that it purchased the TDR an d this position also does not appear to be disputed by the Petitioner- society. However, since the building plans were being submitted in the na me of the developer, purchase of TDR was apparently in the name of the developer.

PAGE NO. 25 of 41

07 OCTOBER 2026

Neeta Sawant WP 10241 of 2026 34) From the conduct of Petitioner as discussed above, it cl early appears that the society was desirous of getting the base ment regularised by loading of TDR. At that time, the occupants of 6th and 7th floors of the building were members of the society, who desi red regularization of their flats free of cost through TDR purchased by Respondent No.1. Thus, far from merely co-operating with R espondent No.1 for regularisation of the basement, it appears that t he society and its members ( particularly residents of 6th and 7th floors) were more than eager that Respondent No.1 purchases the requisite TDR f or such regularisation.

35) There is another important event which also indicates absence of any reservation by Petitioner-society to regularisation of basement for exclusive use by Respondent No.1. Responde nt No.1, who was spearheading the regularization process not only of base ment but also of 6th and 7th floors, desired membership of the socie ty. To secure membership, Respondent No.1 wanted to have the Agreement for Sale of 2004 registered by paying the deficit stamp duty. The society issued NOC by letter dated 29 August 2008 to the Collector of Stamps as under:

Date: 29th August, 2008.

To,

The Collector of Stamp Andheri, Mumbai.

Sir,

This is to inform you that the entire basement (low er ground floor) area admeasuring about 2700 Sft. built up area of our Society building situated on PAGE NO. 26 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 Plot bearing C.T.S. No. C/873, C/874, C/875, C/884 and C/885 of Bandra (West), was allotted by Developers M/S. BHATI HOMES PVT. LTD. t o M/S. GAHLOT DEVELOPMENT SERVICES PVT. LTD. in the year 2000. The said basement is in possession of the said M/S. GAHLOT DEVELOPMENT SERVICES PVT.

LTD. since the year 2000/9/5.

Thanking you,

Yours faithfully

For ALJ RESIDENCY CHS LTD.

(emphasis and underlining added)

36) Thus, the society emphatically admitted that the en tire basement admeasuring 2700 sq.ft. BUA was allotted by the developer to Respondent No.1 and that the same has been in ‘possessi on’ of Respondent No.1 since the year 2000. Acting on the NOC issued by the society, Respondent No.1 executed a Deed of Declaration for the purpose of payment of deficit stamp duty, paid amount of Rs.898350/- plus penalty under the Abhay Yojna and registered the said Deed of Declaration by attaching Agreement for Sale dated 2 August 2004.

37) Simultaneously, Respondent No.1 purchased the TDR and the proposal for regularization of basement, 6th and 7th floors were processed by MCGM in accordance with the plans submitted by the developer’s architect. In the Architect’s letter dated 24 October 2008, it was stated as under:

In this case lastly the plan were approved for base ment (pt) for storage and parking of shops on ground floor + 1 st to 5 th upper floors for residential flats. C.C. upto plinth for Phase-I was granted. Howeve r our client carried out PAGE NO. 27 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 work beyond C.C. i.e. for basement below building, Ground + 5 upper floors and 6th and 7 th floors without approval. Hence Stop Work Notice was issued and the case was included in 154 cases.

Our client has now purchase TDR of 640 Sq.Mt. to regularize the 6 th and 7th floors. The basement is now proposed for I.T. User as per Governme nt Notification under no. TPB-432001881/CR-108/2001/UD-11 (copy attached). The area of basement is counted in FSI. It is to be mentioned that to generate the required fund for paying penalties / premiu m etc.

our client asked to proposed use in basement. Due to this pr oposal will be economically viable.

In view of flats mentioned above, we hereby request yo ur goodself to issue necessary order to E.E.B.P . (WS) H/ward to allow user in basement counted in FSI for the user.

Kindly do the needful at earliest and oblige.

(emphasis and underlining added)

38) Thus, the proposal for regularisation of basement was mooted essentially to generate funds for payment of pen alties for regularisation of other areas (6th and 7th floors). This is how, the Architect submitted plans for use of basement as IT user after p urchase of TDR of 640 sq.m. for regularization of 6th and 7th floors and the basement. The proposal went before the Fire Department whose NOC was required . By letter dated 24 April 2008, the Chief Fire Officer issu ed NOC for regularization of the basement for IT user. It appears tha t though the regularization proposal was at an advanced stage of being sanctioned by MCGM, for some odd reason, the regularization process got hal ted. The exact reason for non-fructification of the regularization proposal is not known at this point of time.

39) From the above chronology of events, it is clear that the Petitioner-society was always willing to have the bas ement regularised.

PAGE NO. 28 of 41

07 OCTOBER 2026

Neeta Sawant WP 10241 of 2026 Its members, particularly residents of 6 th and 7 th floor, who were facing demolition actions from MCGM were eager that Respondent N o.1 provided for their regularization by spending monies for purchase of TDR. The Society apparently did not have any objection for admission of Respondent No.1 as its member. On 7 February 2009, Resp ondent No.1 applied for membership of Petitioner-society. The society failed to decide the application. Therefore, Respondent No.1 was required to approach the Deputy Registrar for grant of membership. When the Deputy Registrar made an order dated 21 August 2009 dir ecting grant of membership to Respondent No.1. The society duly complied with the order and issued Share Certificate to Respondent No.1 on 14 October 2009. The society did not challenge the order passed by the Deputy Registrar on 21 August 2009 for the next 9 long years. T hus, till the year 2018, the Petitioner-society never objected to exclusi ve use of the basement by Respondent No.1. It even maintained members hip of Respondent No.1 in respect of the basement. However, si nce the regularization proposal remained unfructified, the society ap parently took a volte face and decided to challenge grant of membership to Respondent No.1 in the year 2018.

40) However, even while the Petitioner-society filed Revisi on Application No.93 of 2018 before the Divisional Joint Regis trar challenging grant of membership to Respondent No.1, it con tinued justifying possibility of regularization of basement premise s in various collateral proceedings. The society filed Writ Petition No. 406 of 2018 challenging the order of the Competent Authority dated 30 January 2017 and sought deemed conveyance of the land and the building in its favour.

PAGE NO. 29 of 41

07 OCTOBER 2026

Neeta Sawant WP 10241 of 2026 At various places in the memo of the said petition, Pet itioner-society justified capability of regularization of basement premises. In this regard, pleadings in paras-16, 17, 19, 30(k) and 30(l ) of the Petition are relevant:

16. The Petitioners state that the Architect of the Respondent No.22 by their letter dated 19 th March 2008 addressed to MCGM informing that Respondent No.22 had already submitted the TDR of 400 sq. mtr. on 31st October 2007 and that the Respondent No.22 purchased further TDR of 240 sq. mtr. and attached the utilization form and a greement. Hereto annexed and marked EXHIBIT-”R-1” is the copy of the s aid letter dated 19th March 2008 addressed to MCGM by the Architect of the Respondent No. 22. The Petitioners state that they had also provided their No Objection vide their letter dated 3rd April 2008 addressed to the Ex Engineer Municipal Corporation for loading T.D.R. and to get the existing 6th and 7th Floor and basement of the said Building regularized. Hereto annexed and marked EXHIBIT - “R2” is the copy of the said letter dated 3rd April 2008 addressed to MCGM by the Petitioners.

17. The Petitioners submit that the stability certificat e was also obtained by the Architects and as per the said stabi lity certificate there was No Objection to allow the work up to the seven fl oors from structural aspect. Therefore by the internal communic ation dated 7th October 2009 the Dy. Chief Engineer, MCGM put up the pro posal for fixing a date for the hearing of Municipal Commissioner . Hereto annexed and marked EXHIBIT - “S” is the copy of the sa id letter dated 7th October 2009.

19. The Petitioners submit that the said Building is capable o f being regularized and as per the directions of the Hon’ble High Court in Writ Petition No. 379 of 2003 the Municipal Commis sioner has granted stay to demolition and has also held that the building is capable of being regularized by loading of TDR and fulfill ing certain requirements. The Petitioners had also obtained a ce rtificate from an Architect which clearly set out the FSI potential of the plot and the balance F.S.I. available on the said Plot of Land. Her eto annexed and marked EXHIBIT “T” is the copy of the Architect Cert ificate dated 1 October 2016.

GROUNDS

(k) The Respondent No. 2 failed to appreciate that t he Learned Municipal Commissioner had granted stay to any further action by the PAGE NO. 30 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 MMC as the building is capable of being regularized and the Architect had also submitted the TDR and DCR certificate, but the certificate was found to be utilized already in the yea r 2014 and 2016 and hence the regularization could not take place.

(l) The Respondent No. 2 failed to appreciate that t he Municipal Commissioner has already granted stay of demolition and had held that subject to compliance the construction is capable of being regularized.

(emphasis and underlining added)

41) Thus, even before this Court, while seeking deemed conveyance, the Petitioner-society maintained a stand that the basement premises were capable of being regularised. The Petition was decided on 25 November 2024, before which the society did not withdraw the above- quoted averments in the Petition.

42) More recently in the year 2022 also, the deponent of the Petition, Mr. Talat Sayyed, occupant of unauthorised flat on 6th floor justified the possibility of regularization of basement by re lying on various regularization proposals in L.C. Suit No. 560 of 202 2 filed by him before the City Civil Court. Various documents relied upon by him in his suit referred to regularization of not just 6th and 7th floor but also of the basement premises. Thus, the deponent of the Affidavit, w ho himself wanted to avail the benefit of regularisation, has now turne d around and filed the present petition questioning grant of membership to Respondent No.1. This conduct on the part of deponent of t he Petition is required to be deprecated. Even conduct of the society as a whole in filing the present petition questioning grant of membership to Respondent No.1 is highly objectionable.

PAGE NO. 31 of 41

07 OCTOBER 2026

Neeta Sawant WP 10241 of 2026 43) I am unable to accept the contention raised on behalf of t he Petitioner-society that its conduct is irrelevant for deci ding the entitlement of Respondent No.1 to secure membership in res pect of the basement. Petitioner’s conduct is very much of relevance in the light of stand now taken that basement needs to be given a se parate treatment than that of 6 th and 7 th floor premises. Ordinarily, there cannot be estoppel against law. However, the law does not prohibit regularisation of basement. The basement would have already been regula rised if the requisite TDR was still available. [In Writ Petition No.93 of 2018, Petitioner-society pleaded that DRC was found to be alrea dy utilised in 2014 and 2016 and hence the regularisation could not ha ppen.] Petitioner-society wanted Respondent No.1 alone to spend on TDR and the moment it was realised that the DRC was utilised somewhere else, the society decided to go against Respondent No.1. Pet itioner’s conduct is thus entirely relevant in the present case.

44) Thus, the case involves a peculiar circumstance where the Petitioner-society itself had desired regularisation of th e basement premises in occupation of Respondent No.1 and impermissibility for it to now resile from that position. The case also involves a p eculiar circumstance where the society has granted membership to occupants of flats on 6th and 7th floors which are also unauthorised. An attempt sought to be made by Mr. Khandeparkar to draw distincti on between the basement occupant and occupants of 6th and 7th floors does not appeal to this Court. If basement is not covered by FSI so i s the position in respect of the flats on the 6th and 7th floors. Mere differe nce in the arrangement by which rights in the basement are acquired by PAGE NO. 32 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 Respondent No.1 as compared to the manner of acquisition of rights by occupants of 6th and 7th floor of the building would not put those occupants on higher pedestal as compared to the Petition er. If Petitioner is denied membership of the society, the membership wil l have to be denied even to all the occupants of 6th and 7th floors. As observed above, Respondent No.1 appears to be better situated where occupa nts of 6th and 7th floors. This is in view of the fact that part of th e basement structure admeasuring 59.02 sq.m. has been sanctioned in the plan dated 16 October 1998 as storage space. As against this, not hing is sanctioned qua the flats on the 6th and 7th floors. The argument that pro vision for storage on the basement does not involve use of FSI does not cut any ice.

As of now there is no sanctioned BUA/FSI for construction of 6th and 7th floors of the building. Therefore, going by the standard of non- consumption of FSI, the flats on 6th and 7th floors need to be demolished and membership in respect thereof needs to be denied to the occupants of those flats.

45) In view of the above discussion, I am of the view that th ere is some sanction to the part of the premises in the base ment in the plan dated 16 October 1998 and grant of membership to Responde nt No. 1 qua the sanctioned part of the basement cannot really be f ound fault with. To this extent, the order passed by the Deputy Registrar deserves to be upheld. Grant of membership to Respondent No.1 is no t to encourage sale of common amenities by Developers. In Dheeraj Dreams Building No.1 CHS Ltd. vs. Divisional Joint Registrar, Co-operative Societies 24 , this Court has held that cooperative society can refuse 24 2026:BHC-OS:7221 PAGE NO. 33 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 membership to a buyer if the developer sells refugee are as a residential flat. The judgment is delivered in the context of Sect ion 154B-5 of the MCS Act. Mr. Khandeparkar has also strenuously relied on provisions of Section 154B-5, which provides thus:

154B-5. Limit on Membership.—

A housing society shall not admit to its Membership pe rsons exceeding the number of flats or plots, as the case may be, avail able for allotment in that co-operative housing society :

Provided that, a plot owners co-operative housing society may admit to its Membership an organization (co-operative housing s ociety, company, association, etc.) of flat purchasers, in case the plot owner had constructed and sold flats as per prevailing rules, in place of original plot owner Member.

Going strictly by provisions of Section 154B-5 of the Act, no buyer of premises which are not a ‘flat’ within the meaning of Se ction 154B-1(13)

of the Act can become member of the society. Section 154B-5 is inserted by amendment of 2019 to ensure that persons claiming rig hts in respect of premises in the building which do not qualify as a ‘flat’ are not granted membership. The provision is aimed at discouraging the developers from selling commmon amenities in a building. In the presen t case, however, applicability of provisions of Section 154B-5 becomes questi onable since the provision is incorporated on 9 March 2019, whereas Respondent No.1 applied for and was intitally granted membership in the year 2009. Also, under Section 154B-1(13) of the Act, ‘godown’ also can be treated as a ‘flat’ so long the same is sanctioned by the planning authority [ SEE:

Ashwini Heights (supra)]. As observed above, the basement premises were on the verge of getting sanctioned as a DPU. Basement area admeasuring 59.02 sq.m. is snctioned by the planning authority as storage space, which is akin to a godown. Therefore, in t he peculiar facts PAGE NO. 34 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 and circumstances of this case, Respondent No.1 is ent itled to membership qua the sanctioned portion of the basement.

46) Reliance by Mr. Khandeparkar on the judgment of this Court in Dr. Vasant P. Jain is inapposite, which involved the issue of grant of membership in respect of a garage. The present case does not involve occupation of a garage. Also, in a given circumstance, this Court directed grant of membership even in respect of garage when the sa me was found to be self-contained part of the immovable property of the s ociety in Mistry Park CHSL. Since the case does not involve occupation of garage by Respondent No. 1 , it is not necessary to delve deeper into that aspect.

Reliance by Mr. Khandeparkar on order passed by this Cou rt in Amanul Ansari is again inapposite. As held by this Court in Ashwini Heights, it is possible in a given case to grant membership if the premises in the basement floor are found to have been sanctioned by the Planning Authority.

47) In somewhat similar circumstances, in Kamla Spaces , this Court upheld grant of membership during pendency of regulariz ation process by holding in para-15 of the judgment as under:

15) So far as the issue of non-registration of agreemen ts in respect of Units, No.03, 04 and 09 involved in Writ Petition (Lodg.) N o. 5243 of 2024 is concerned, there is no denial to the fact that agreemen ts have been executed by the Developer in respect of the said three units. The agreements were submitted for adjudication of stamp duty and the unit pu rchasers have paid stamp duty on such agreements. Whether absence of regularisation would result in denial of title to the said unit purchaser s in respect of Unit Nos.03, 04 and 09 is the issue which need not be decided by the Registrar while deciding application under Section 23 of the Act of 1960. As of now, the concerned unit purchasers are armed with agreements which are duly sta mped and the same PAGE NO. 35 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 are presented before the Society for their admission as members. In my view, therefore the Registrar need not undertake a detailed enquiry into the validity of acquisition of title of unit purchasers in respe ct of unit Nos.03, 04 and 09 while deciding application under Section 23 of the Act of 1960. In fact, under Bye-law No. 19(a) (vi) of the Model Bye-laws applica ble to Tenant Co- partnership Cooperative Housing Society, what is required to be submitted by a proposed member is the following:

(vi) he has sent, along with the application for membership of the society, a certified copy of the agreement, duly stamped entered into by him with the Promoter (Builder) or transferor under Section 4 of the Ownership Flats Act;

This takes care of objection about non-registration of agreements in respect of Unit Nos. 03,04 and 09.

48) In the present case, this Court has directed grant of de emed conveyance of the land and building in favour of the Pet itioner-society by its judgment and order dated 25 November 2024. The grant of deemed conveyance is essentially to ensure that the d eveloper does not take benefit of his own wrong. He has constructed the building by violating the planning norms. Grant of deemed conveyance e nsures a right in favour of the flat purchasers to demolish the buil ding and to reconstruct the same. Accordingly, the society is apparent ly taking steps for demolition of the building and for its reconstruction. Th erefore, now there is no question of regularisation of either the basem ent or of 6th or 7th floors. The entire building would now get reconstructed and all members would secure benefits of redevelopment, irrespective of whether their old/existing premises are authorised or otherwise. If this is the position, there appears to be no reason to draw distin ction between Respondent No.1 and occupants of flats on 6th and 7th floors. The occupants of flats on 6 th and 7 th floors would receive benefit of redevelopment process even though their flats are also wit hout sanction PAGE NO. 36 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 and regularization proposal qua their flats has not fructified. The same benefit needs to be extended to Respondent No.1 as well.

49) Both the sides have accused each other of grossly suppressing facts. Petitioner has accused Respondent No.1 of suppressing letter dated 9.9.2002 issued by Responden t No.1 to MCGM admitting allotment of basement by developer in lieu of its claims against the developer. Petitioner has also accused Re spondent No.1 of suppressing the factum of TDR being sold by it. However , it is seen that the TDR was not acquired in the name of Respondent No.1 who may have paid for purchase of the same. Though the TDR app ears to have been sold, there is nothing on record to infer that the s ale was caused by Respondent No.1 itself. Even if it is assumed arguendo that Respondent No.1 has sold the TDR, the same would not be a reason to dra w any distinction between rights of basement occupier vis-a-vis rights of occupants of flats of 6th and 7th floors. Allegation of suppre ssion in this regard is therefore without any merit. Petitioner has also sought to level allegations of suppression against Respondent No.1 qua access to the basement and incorrect representation about its nature. Th is again is not a material factor for decision of the issue of membersh ip. It is an admitted position that the developer failed to construct ramp/staircase to access the basement. The society had expressed will ingness for construction of staircase to the basement under the regula rization proposal. Therefore, the allegation of suppression against R espondent No.1 in this regard does not merit any consideration.

PAGE NO. 37 of 41

07 OCTOBER 2026

Neeta Sawant WP 10241 of 2026 50) Respondent No.1 has also alleged suppression against th e Petitioner particularly with regard to the pleas raised be fore the City Civil Court and in this Court in different proceedings ju stifying regularization proposal. I have already dealt with the s tand taken by the society and by deponent of the Petitioner before this Court and before the City Civil Court respectively. I have also deprecate d the Petitioner and to deponent of the petition in taking stands suitable to their interest in different proceedings. Beyond this, I do not desire t o take allegation of suppression raised by Respondent No.1 any further. It is therefore not necessary to burden this judgment by discussing ratio of judgments in K.

Jayaram, Ramjas Foundation and Elder Projects (supra).

51) Having held that Respondent No.1 is entitled to membership, in my view, it is necessary to clarify the exact premises in respect of which membership needs to be granted to Respond ent No.1. It appears that basement was proposed to be constructed both f or parking as well as for storage space. Thus, part of the basement appears to be a ‘common amenity’. Though the society had shown willing ness to regularise the entire basement admeasuring 2700 sq.m. and though the plans for regularization were at an advanced stage, ulti mately the regularization proposal has not fructified. The society accu ses Respondent No.1 of sabotaging the regularisation process on a ccount of sale of the TDR. This allegation is disputed by Responde nt No.1, who submits that the TDR was purchased in the name of the d eveloper and it is unknown as to how the developer dealt with the sa me. As observed above, premises admeasuring 59.02 sq.m. are already appro ved in the sanctioned plan dated 16 October 1998 as ‘storage space’ . Thus, there is PAGE NO. 38 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 some sanction to the premises admeasuring 59.02 sq.m. I t also appears to be a fact that the total constructed basement admeas ures only 230.30 sq.m. equivalent to 2478.02 sq. ft. Thus, in reality basement admeasuring 2700 sq.m. does not even exist. Therefore, there is no question of granting membership to Respondent No.1 qua basement admeasuring 2700 sq.ft. Considering these peculiar circumstances, in my view, grant of membership to Respondent No.1 is required to be restricted t o premises admeasuring 59.02 sq.m. which is equivalent to about 637 sq.ft.

52) In view of the above discussion, I do not find any valid ground to interfere in the order of the Deputy Registrar gra nting membership to Respondent No.1 in respect of basement premises. It only needs to be clarified that the grant of membership sha ll be restricted only to premises admeasuring 59.02 sq.m. To avoid any further disputes between the parties regarding grant of benefit of redevelopment process, the premises admeasuring 59.02 sq.m. need to be treated as residential one. In the redevelopment process, Petitioner- society shall consider premises admeasuring 59.02 sq.m. in the baseme nt as residential premises for the purpose of grant of benefits of redevelopment process. This is because the society itself had shown willingness to sanction the entire basement premises for commercial IT user. Also, there is substantial reduction of area of base ment for the Respondent No. 1. From the claim of 2700 sq. ft, it is reduced to 637 sq.ft.

The reduction in the area can be mitigated to some exten t by directing consideration of the premises as residential one. It is not known whether the new building would have any commercial space for use as Data Processing Unit. Therefore, to avoid further disputes between the parties, PAGE NO. 39 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 it is necessary that the 59.02 sq.m. premises of Resp ondent No.1 are considered as residential premises for grant of redevelopmen t benefits.

The society cannot now oppose consideration of premises a dmeasuring 59.02 sq.m. as residential premises only for the purpose of redevelopment benefits considering the fact that it was onc e willing to regularise the entire basement premises as commercial IT user. Thus, recognition of premises admeasuring 59.02 sq.m. as residen tial premises would ensure that the Respondent No. 1 would receive a residential flat in the new building with additional area sanctionable u nder redevelopment at par with other members and this would b alance the equities between the parties.

53) Before parting, it must be observed that this Court has no t appreciated the actions of the Petitioner-society and particularly of deponent of the Petition, Mr. Talat Syed who is the se cretary of the society in filing the present petition. The deponent is h imself an occupier of unauthorised flat on the 6th floor of the building . He wants to selectively reap the benefits of redevelopment process wh ile denying similar benefit to Respondent No.1. The deponent wanted to have his flat regularised by making Respondent No.1 spend on purcha se of TDR.

He selectively relies on regularization proposal to save his flat from being demolished, which proposal envisaged regularisation of basement as well. However, when things come to grant of benefit of redevelopment, the deponent changes the stance and seeks to create a distinction between himself and Respondent No.1. Such conduct on the part of deponent of the Petitioner-society not only deserves se rious deprecation, but also imposition of costs. In ordinary circumstances, this PAGE NO. 40 of 41 07 OCTOBER 2026 Neeta Sawant WP 10241 of 2026 Court would have proceeded to impose costs on the deponent of the Petition, Mr. Talat Syed. However, considering the fac ts and circumstances of the present case and because the depone nt may have acted on authorisation granted to him by the general body of the society, this Court is refraining from imposing costs on him.

54) I accordingly proceed to pass the following order:

(i) Order passed by the Deputy Registrar dated 7 May 20 26 granting membership to Respondent No.1 in respect of the basement premises is confirmed.

(ii) Grant of membership to Respondent No.1 shall however be confined to the premises admeasuring 59.02 sq.m., which shall be considered as residential premises for the purpose of gran t of redevelopment benefits.

55) Subject to the above clarification, the Writ Petition is dismissed. There shall be no order as to costs.

[SANDEEP V. MARNE , J.]

56) After the judgment is pronounced, the learned counsel appearing for the Petitioner seeks stay of the judgmen t for a period of 8 weeks. The request is opposed by the learned counsel ap pearing for the Respondent. Considering the nature of findings recorded in th e judgment, the request for stay is rejected.

[SANDEEP V. MARNE , J.]

PAGE NO. 41 of 41

07 OCTOBER 2026

NEETA

SHAILESH

SAWANT

Digitally

signed by

NEETA

SHAILESH

SAWANT

Date:

2026.10.07

18:34:12

+0530